Author Archive | Jonathan H. Adler

Last night, before heading to Times Square for the New Year’s festivities, Justice Sonia Sotomayor granted a request for a stay of enforcement of the “contraception mandate” against several Catholic organizations. Here’s the order and more from SCOTUSBlog and the AP. In other pending cases, injunctions pending appeal were granted by split panels of the D.C. Circuit and the Sixth Circuit (see also here). The U.S. Supreme Court will hear two challenges to the “contraception mandate” later this term. […]

By its own initiative, the Judiciary had already achieved significant cost reductions when the sequester provisions of the Budget Control Act of 2011 went into effect on March 1, 2013. The five percent across-the-board sequestration cut reduced Judiciary funding by nearly $350 million in fiscal year 2013—a reduction on top of the cost savings that the courts had already achieved. The impact of the sequester was more significant on the courts than elsewhere in the government, because virtually all of their core functions are constitutionally and statutorily required. Unlike most Executive Branch agencies, the courts do not have discretionary programs they can eliminate or postpone in response to budget cuts. The courts must resolve all criminal, civil, and bankruptcy cases that fall within their jurisdiction, often under tight time constraints. And because many of the Judiciary’s expenditures, such as rent and judicial salaries, must be paid regardless of sequestration, the five percent cut that was intended to apply “across-the-board” translated into even larger cuts in discretionary components of the Judiciary’s budget.

The Executive Committee of the Judicial Conference—the judicial body responsible for funding allocations—responded to the sequester by adopting a number of emergency measures. Among its actions, the Executive Committee imposed a 10 percent reduction on funding allocations to court units, which resulted in further staffing losses in the courts. The combined effects since July 2011 of flat budgets followed by sequestration reduced on-board court staffing levels by 3,100 (14 percent) to about 19,000 employees—the lowest staffing level since 1997, despite significant workload increases over that same period—and reduced federal defender offices staffing by 11 percent in fiscal year 2013 alone.

Avik Roy writes on how Politifact’s assessment of the “if you like your plan, you can keep it” promise went from 100% true to half-true to a “pants on fire” lie to the “lie of the year.” The column is fairly devastating by itself, but then Politifact’s Angie Holan, who authored some of the relevant evaluations, tried to defend Politifact with a tweet:

@avik The ’08 rating was for a campaign proposal with NO mandate. Very different set of facts than later ruling.

The mind reels. Then-Senator Obama’s 2008 health care plan had numerous elements that were sure to disrupt health insurance markets, as Roy noted in the column. (If, on the other hand, Politifact wants to argue that the initial promise was “true” because it represented then-candidate Obama’s honest intent in 2008, then there was no point in fact-checking it at all.) More importantly, insofar as one wants to argue that the 2008 plan and the PPACA are sufficiently different to justify different assessments of the claim, the individual mandate is largely irrelevant — and this is the first time someone from Politifact has tried to suggest otherwise. (For instance, there’s no mention of the mandate in Ms. Holan’s “Lie of the Year” post.) The individual mandate is not what is causing individuals to lose their health insurance. If anything, it has the opposite effect by reducing the effect of other PPACA requirements. It’s as if Politifact “fact-checkers” don’t know very much about the subjects of their “fact checks.”

Shortly before the holiday the Ohio Supreme Court rejected a challenge to Governor John Kasich’s decision to accept Medicaid expansion under the PPACA. This was a controversial decision within the Governor’s party, and prompted a lawsuit. The plaintiffs, six state legislators and two anti-abortion groups, argued that the state could not accept Medicaid expansion without express legislative authorization. Under Ohio law, however, an entity called the Controlling Board may authorize state agencies to accept and spend federal funds, and the Controlling Board voted to approve the Medicaid expansion which, at least initially, is fully funded by the federal government. According to the Ohio Supreme Court, the Controlling Board could take this step.

Chief Justice Maureen O’Connor wrote the majority opinion in State ex rel. Cleveland Right to Life v. State of Ohio Controlling Board, joined by Justices Pfeifer and O’Neill. Justice O’Donnell, joined by Justices Kennedy and French, dissented on the grounds that the case presented a non-justiciable “political question” that was not fit for resolution by the courts. Justice Lanzinger concurred in the judgment without opinion. So while the case was decided 4-3 (or 3-1-3), not a single justice voted to invalidate Ohio’s acceptance of Medicaid expansion under the PPACA.

In my opinion, the Court reached the correct outcome, though I am torn on the rationale. Whether the case presented a non-justiciable political question is a close call. The dissent is correct that the state legislature retains “both the incentive to protect its prerogatives and the institutional mechanisms to do so.” Courts need not sully themselves by inserting themselves into intra-branch political disputes, particularly where individual rights are not at stake. Here, however, the controlling statute does seem to provide a sufficiently clear standard for resolving the case. The relevant statutory provision provides that “The controlling board shall […]

Around 12:50pm EST I’ll appear on HuffPost Live to discuss legal cases to watch in 2014, with a focus on the Supreme Court. Mike Sacks is the host and the other guests are Carrie Severino of the Judicial Crisis Network and Georgia State University law professor Eric Segall. I’ll post a link to the segment after it airs.

The U.S. Court of Appeals for the Tenth Circuit’s refusal to stay a district court decision invalidating Utah’s ban on same-sex marriage is sending the issue back to the Supreme Court less than six months after last summer’s the Windsor and Perry decisions. Adam Liptak reports:

The question for the Supreme Court in the short term will be whether to block Judge Shelby’s ruling while appeals proceed. The state’s request will initially be directed to Justice Sonia Sotomayor, the member of the court responsible for overseeing the Tenth Circuit, but she will almost certainly refer the matter to the full court. It is likely to act within several days.

The Supreme Court will face difficult calculations, ones it did not have to confront in reviewing decisions from federal courts in California striking down Proposition 8, the state’s ban on same-sex marriage. In that case, the United States Court of Appeals for the Ninth Circuit, in San Francisco, stayed both the trial judge’s ruling and its own as appeals went ahead.

The ultimate argument for a stay would be to preserve the status quo while the underlying legal issues are resolved. Were Judge Shelby’s decision to be overturned, courts would face the choice of invalidating those same-sex marriages conducted in the interim, or rewarding those who raced to the courthouse in the wake of the initial decision. Yet, as Rick Hasen notes, that will not buy the Court all that much time. It may be too late for a decision on the merits of this issue this term, but the Supreme Court may have little choice to decide whether there is a constitutional right to same-sex marriage as soon as 2015.

UPDATE: According to Andrew Koppelman, the Utah AG’s “goof” is the reason there was no stay in the […]

In a statement e-mailed to faculty and other members of the university community, Case Western Reserve University President Barbara Snyder and Provost Bud Baeslack forcefully rejected calls for an academic boycott of Israel. As they note, academic boycotts of this sort run contrary to principles of academic freedom and “seek to subvert one of higher education’s core values in service of other ends.” I’ve reproduced their entire statement below the fold. […]

On December 19, the District of Columbia Court of Appeals effectively erased Michael Mann’s initial court victory in his defamation lawsuit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute. Here’s how Mark Steyn pithily summarizes the developments:

1. Dr Michael Mann’s lawyer, John Williams, filed a fraudulent complaint falsely representing his client as a Nobel Laureate, and accusing us of the hitherto unknown crime of defaming a Nobel Laureate.
2. After Charles C W Cooke and others exposed Dr Mann’s serial misrepresentation of himself as a Nobel Prize winner, Mann’s counsel decided to file an amended complaint with the Nobel falsehood removed.
3. Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene then denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
4. The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.
5. So everyone is starting afresh with a new judge, a new complaint from the plaintiff, and new motions to dismiss from the defendants. That’s the good news.
6. The bad news is that Mann’s misrepresentation of himself as a Nobel Laureate and Combs-Greene’s inept management of her case means that all parties have racked up significant six-figure sums just to get back to square one. In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint. But, this being quite the

A federal judge Monday ordered Ohio authorities to recognize gay marriages on death certificates, saying the state’s ban on such unions is unconstitutional and that states cannot discriminate against same-sex couples simply because some voters don’t like homosexuality.

Although Judge Timothy Black’s ruling applies only to death certificates, his statements about Ohio’s gay-marriage ban are sweeping, unequivocal, and are expected to incite further litigation challenging the law. Ohio’s attorney general said the state will appeal.

At midnight Monday, the official deadline arrives for Americans to sign up through the new federal health insurance exchange for health plans that begin Jan. 1. But, without any public announcement, Obama administration officials have changed the rules so that people will have an extra day to enroll, according to two individuals with knowledge of the switch.

“Conservative groups spend up to $1bn a year to fight action on climate change,” reads the headline of an article in the Guardian on a new study, that purports to show the extent of foundation funding opposing action on climate change. Only the study shows no such thing.

The study, “Institutionalizing delay: foundation funding and the creation of U.S. climate change counter-movement organizations” by Robert Brulle, was published last Friday in Climatic Change. For this study, Brulle identified 91 organizations that oppose the imposition of emission controls on greenhouse gases (the “Climate Change Counter Movement” or CCCM), and totaled up their entire annual operating budgets, without regard to whether climate or environmental matters generally represent a significant portion of each organization’s work. The study then trumpets the resulting number — $900 million per year from 2003 to 2010 — as if this represents the size and extent of think tank and advocacy group opposition to climate change policies. This is ridiculous, as many of the organizations listed, such as the American Enterprise Institute, Hoover Institution, and Heritage Foundation, spend only a tiny fraction of their budget on climate policy. AEI’s revenue in 2009, for instance, was $28.8 million. Yet AEI does relatively little on environmental issues, let alone on climate change. Moreover, during the period examined in Brulle’s study, AEI published work supporting action on climate change (see, e.g., here). The Brulle study also details foundation funding for these organizations, again as if every dollar given by conservative foundations to these groups has something to do with climate policy, when it is easy to show this is not the case.

The point of studies like this is to sustain a narrative that environmentalist organizations are out-gunned by a sinister network of well-funded conservative organizations. Sure, outfits […]

Northwestern’s Steven Calabresi and Michael Perl have an interesting new paper on whether the outcome of Brown v. Board of Education can be justified on originalist grounds. Here’s the abstract:

This article offers an originalist justification for the Supreme Court’s landmark decision almost sixty years ago in Brown v. Board of Education. We examine the thirty-seven State constitutions that were in effect in 1868, when the Fourteenth Amendment was ratified, and we conclude that three-quarters of the States in 1868 recognized access to a public school education as being a fundamental right at that time. Since the Fourteenth Amendment forbids racial discrimination with respect to fundamental rights, i.e. privileges or immunities of national and state citizenship, Brown v. Board of Education was correctly decided using the original public meaning approach of Justices Antonin Scalia and Clarence Thomas. We show that by 1954 fifteen of the Forty-Eight States had added clauses to their State constitutions specifically providing for racial segregation in public schools. A three quarters consensus about access to a desegregated education which existed in 1868 thus had vanished by 1954. We therefore suggest that Brown v. Board of Education finds more support in State constitutional law from 1868 than it does from State constitutional law in 1954. Contrary to the received understanding, Brown v. Board of Education is better justified using an originalist approach to constitutional interpretation than it is using a living constitution, evolutionary approach. The conventional wisdom about Brown v. Board of Education is thus shown to be completely and totally wrong.

The advantages of classical liberal market cosmopolitanism–the idea that it’s best to set aside peaceful differences of opinion and creed and worries about different races, nationalities, and genders when deciding how we interact with the world–has a great track record of making us all richer and happier.

The idea that that people should be punished with boycott or losing their jobs over having wrong beliefs hobbles the flowering of tolerant classical liberal market cosmopolitanism.

There may have been a good reason why classical tolerance of expression was summed up in the epigram: “I disagree with what you say, but will defend to the death your right to say it!”

That has a different feel than: “I disagree with what you say, I think you are evil for having said it, I think no one should associate with you and you ought to lose your livelihood, and anyone who doesn’t agree with me about all that is skating on pretty thin ice as well, but hey, I don’t think you should be arrested for it.”

Too often people forget that the idea of tolerance presumes that there is something objectionable that must be tolerated. Toleration is not the same thing as acceptance, yet in the name of the former, many people demand the latter.

This week, HHS Secretary Kathleen Sebelius announced yet another delay in ObamaCare implementation. This time the Administration is delaying enforcement of the individual mandate (i.e. not assessing the mandate penalty) on those who had health insurance plans canceled for failure to meet the minimum coverage requirements of the law. As Nicholas Bagley explains, there is more legal authority for this move than the prior delays. The statute provides for hardship exemptions from the mandate penalty, whereas there is no clear authority for either the employer mandate delay or the “if like it you can keep it” fix.

UPDATE: Avik Roy has more. As he notes: “this most recent announcement from the Obama Administration is the first time it has publicly admitted that Obamacare is making health insurance less affordable, not more so, for millions of Americans.” […]

Now that Senate Democrats have eliminated the filibuster for judicial and executive branch nominees, it will be somewhat easier to confirm potentially controversial nominees to the federal bench. In anticipation of this shift, Ian Millhiser of Think Progress identified “5 People Who Could Be Confirmed To The Supreme Court Once The Filibuster Is Nuked,” including former OLC nominee Dawn Johnsen and Stanford Law’s Pamela Karlan. Yet the new rule cuts both ways, and will make it easier to confirm a Republican President’s nominees as well.

This week, Millhiser warned of the horrors that could result should a Republican Preisdent have the opportunity to replace Justice Ruth Bader Ginsburg on the Supreme Court. Given the end of judicial filibusters, expect to hear an increasing number of progressive legal analysts calling for Justice Ginsburg’s retirement from the Court so that President Obama may name her successor. (And Justice Breyer too.) Although Senate Democrats purported to leave the possibility of filibusters for Supreme Court nominees in place, no one believes this distinction will hold for even a moment should a cloture vote on a Supreme Court nomination fail. And without a potential filibuster, progressive groups have little hope of blocking the confirmation of a qualified conservative nominee — and without this threat there is less reason for a President to nominate a more “mainstream” or less controversial nominee. All the more reason for progressives to demand Supreme Court vacancies now. […]